If You Own the Phone, You Can Read the Text Messages

Inc. contributing editor Courtney Rubin was for five years a London-based staff writer for People magazine. Rubin, a former senior writer for Washingtonian magazine, has written for the New York Times magazine, Time, Marie Claire, and other publications. She is the author of The Weight-Loss Diaries.

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A Supreme Court ruling last week emphasized the importance of a clear workplace policy about the use of company mobile phones and computers.

The court ruled unanimously that employers have the right to read text messages – including personal ones – sent by workers if they have reason to believe that workplace rules are being broken.

Though the Court rejected a broad right of privacy for employees, it did say it would tread carefully in deciding how far an employer can go in the future.

"Prudence counsels caution," Justice Anthony M. Kennedy wrote, arguing that the court should not use the case of a police officer who sends numerous text messages on company equipment to "establish far-reaching premises that define the existence, and extent, of privacy expectations" of workers.

He continued: "Cell phone and text message communications are so pervasive that some persons may consider them to be essential means or necessary instruments for self-expression, even self identification. That might strengthen the case for an expectation of privacy. On the other hand, the ubiquity of those devices has made them generally affordable, so one could counter that employees who need cell phones or similar devices for personal matters can purchase and pay for their own."

The Supreme Court's ruling in City of Ontario v. Quon overturns an earlier decision by the Ninth Circuit Court of Appeals in a case involving a California police officer who claimed supervisors' search of his text messages violated his Fourth Amendment rights. The officer, Sgt Jeff Quon, was using a city-issued pager to send sexually explicit messages.

Quon sued the city, its police chief, and the police department in October 2004, contending that the pager search was unreasonable. The suit argued that when Quon and the other officers received their pagers, the city didn't have a text-message policy. The city did, however, have official policies about general computer, Internet, and e-mail usage – and the policies limited the use to official purposes. (Need help developing employee rules? Check out these guides on creating a work mobile phone policy or a work e-mail policy.)

The city's contract with Arch Wireless (since bought by USA Mobility Wireless) allowed each pager 25,000 characters per month. Police officers who went over the limit – of which Quon was one, thanks largely to the personal messages (400 of 456 messages were personal one month) – could pay the extra usage charges to avoid being audited. Quon's department discovered the sexually explicit text messages to his then-wife and mistress when they conducted a review of pager use to see whether the 25,000-character limit was enough for official purposes.

In the case, Quon argued the messages were private, while the city countered that he knew the department's computer use policies – and in fact, that text messages sent on department pagers could be subject to public disclosure requests under the California Public Records Act. (It also said that Quon's paying the extra cost for his usage was an informal policy; not an official one.)

The Supreme Court ruled the search of his messages was justified because the city and the police department had "a legitimate interest in ensuring that employees were not being forced to pay out of their own pockets for work-related expenses, or on the other hand that the City was not paying for extensive personal communications."

The ruling continued: "That the search did reveal intimate details of Quon's life does not make it unreasonable, for under the circumstances a reasonable employer would not expect that such a review would intrude on such matters.

Surveys have shown that more than three quarters of bosses think employees should be allowed to send personal e-mail or texts from employer-provided equipment, as long as it isn't excessive and doesn't interfere with work. That said, half of employers say they monitor employee email use, and about a quarter have fired workers for violating e-mail or text policies.